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Updated: Jul 22, 2020

Author: Ankita Maji

UPES, Dehradun


An important purpose of arrest is to ensure that the accused is present at the time of his enquiry or trial and to make sure that he is available to receive his punishments on convictions. If this purpose can be attained without imposing detention on the accused during the inquiry or trial, it would be a perfect blend of two conflicting demands- liberty of an individual and promoting interests of justice. The provisions of Bail aim at such a blending. They have been enacted for the purpose of restoring liberty to the arrested person without endangering the objectives of arrest.

The number of the under-trial prisoners have been increasing fundamentally in recent times. Our judiciary takes time to conclude these cases as it needs to consider a number of factors relating to the offence committed by an individual. Keeping in mind the fundamental right of liberty granted to a person, detaining an individual for a really long time in jail makes it questionable. Denying an individual his freedom should be done only under rare conditions. Additionally, it should be noted that a person's freedom from the State's restriction lies on the discretion of the Judiciary, and such discretion must be practiced carefully and an appropriate judicial discipline must be followed.


Article 21 of the Indian Constitution grants personal liberty to every person, and is recognized as a fundamental right. Just like every other right under the Constitution, it is subjected to restrictions and curtailment so as to maintain a balance of law and order in the society. The criminal system of a country can be successful only when there is a perfect balance of rights of individuals and the rights of the society at large. The right of bail and the procedure provided under the Code of Criminal Procedure protects a person from unreasonable detention, in case his detention is not required to arrive at the ends of justice. ‘Bail is the rule, and jail is the exception’- this rule is being followed by courts while dealing with an application for bail as the question that lies here is the personal liberty of a person which is valued and protected under Articles 19, 21 and 22. In State of Rajasthan v. Balchand[1], it was held that an accused would be held in jail only under the circumstance that he would flee from justice, or commit the same offence again, tamper with evidence or harm the witnesses and the like.

The law of Bail has to harmonise two disputing requirements- The need to protect the society from danger and crime and on the other hand, the presumption of innocence till proven guilty. Even though it is a settled fact that every case must be viewed on the basis of its own merits, the jurisprudence of Bail has been quite unsteady and unsettling when it comes to the practical application of this concept.


The definition of bail was provided in Sunil Tulchand Shah v. Union of India[2], where the Supreme Court stated that, “Bail is a security obtained from a person arrested regarding an offence for the purpose of securing his presence during the course of trial.”

The concept and usage of bail could be traced back to 339 B.C. During the medieval period, the concept of Circuit Courts in Britain introduced the concept of bail. The provision of bail was predominant in India in the form of ‘muchalakai’ which refers to a personal bond and zamanat during the period of Mughals. The ancient Hindu jurisprudence used to have speedy disposal of cases, where slackness was not an option. Post-independence, the Indian Constitution provided automatic right of life and liberty to its people under Article 21. In India, the provision of Bail is dealt with under Code of Criminal Procedure (CrPC), 1973, under Sections 436-450, which also talks about Anticipatory Bail. Section 41 of CrPC also lays down the statutory right of Bail to an individual who is detained or is apprehending detention.

In the case of State of Maharashtra vs. Sitaram Popat Vetal[3], the Court laid down a number of factors to be considered before bail can be granted:

The nature of allegation and the intensity of punishment if there should arise an occurrence of conviction and the nature of supporting evidence;

Apprehension of meddling with the evidences or apprehension of threatening or harming the complainant;

Prima facie contentment of the Court in support of the charge.

In the case of SP Vital, it was held that the Court should refuse bail only on three grounds- If the accused is likely to escape, if he is likely to meddle or tamper with evidence or harm the witnesses, or if he is to repeat the offence again.

In 2013, son of a former Chief Minister of Andhra Pradesh was denied bail as the Court felt that his release would hinder the investigation as he could influence the witnesses and tamper with material evidence. The court felt economic offences involving huge public losses need to be considered seriously. In another case involving a senior politician, the Delhi High Court held that even though there was no risk of flight or tampering of evidence, the possibility of influencing witnesses through strong political connections cannot be ruled out. This decision was quite contrary to the view of the Court in the case of Sanjay Chandra v. CBI[4], which involved a similar economic offence -“it would be quite contrary to the concept of personal liberty enshrined in the Constitution, that any person should be punished in respect of any matter, upon which he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances." The legal system within which the judges work is very uncertain. The huge number of dissimilarities in the decision of the courts stays unexplained.

The objective of bail is to make sure the accused appears before the court during trial, as it is neither punitive nor preventative except in cases of preventive detention. Depriving someone of liberty is a punishment and should only be done after the guilt of the accused has been proved. The severity of the crime, therefore, cannot be a determinate for granting bail unless the guilt is established and the person is convicted.


Anticipatory bail was introduced after the recommendation of the 41st Law Commission Report of 1969 under Section 438 of CrPC which reads as follows:

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Apart from the fact that many people try to implicate false cases against their rivals in order to disgrace them or for the purpose of keeping them under detention in jail for some days, another reason for including such a provision in CrPC is to protect the fundamental rights of a person, and prevent its violation. It can also be called as pre-arrest bail, as opposed to an ordinary bail which is granted only after a person is arrested. The person seeking anticipatory bail, must qualify the grounds of granting bail, to the satisfaction of the courts. Reasonable restrictions can be imposed by the courts to maintain justice, while granting the bail. A question which arises in the name of restrictions is whether the court can impose a time limit upon the grant of this bail. An important case in this regard is Sushila Aggarwal and others Vs. State (NCT of Delhi) and another (2020), where the Court held that there cannot be any time limit while granting anticipatory bail, unless there is a special circumstance. The court also held that this bail does not end when the accused is summoned, or when the charges are framed, it continues till the end of the trial. The court in the case of Shri Gurbaksh Singh Sibbia and others v. State of Punjab[5]observed that Section 438(1) should be interpreted in light of Article 21 of the Constitution. This case also held that the condition of filing an FIR before seeking a plea of anticipatory bail is not important and the plea can be moved even earlier as long as the facts and grounds for apprehensible arrest hold good. The jurisdictional court can also grant a limited interim anticipatory bail under certain circumstances, while the plea for anticipatory bail is pending before the court. An important decision with regard to anticipatory bail was that the investigating authority can move to the apex court under Section 439 (2) to arrest the accused in case he violates any of the conditions of granting the bail such as absconding, or harming witnesses.

It should be kept in mind that anticipatory bail is not a ticket for committing a crime nor a protection granted from a crime that is committed. In Siddharam Satlingappa Mhetre v. State of Maharashtra[6], the Supreme Court had cleared the scope and nature of Anticipatory Bail. It said that even though it